Monthly Archives: February 2010

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Those of our readers whose memories run that far back, may enjoy a backward look at the notorious San Franncisco “Freeway Revolt” in which the city, yielding to public protests, refused to grant CalTrans permission to build new freeways through various parts of the city. The result was that for many years San Francisco sported freeway stubs, for lack of a better word. They were uncompleted, elevated freeways that ended abruptly in mid-air. They were torn down more recently, as was the Embarcadero Freeway.

So here it is in all its glory – another detailed post by SF.Streetsblog.org, reviewing the failed San Francisco freeway plans and the history of that caper. An interesting read, that. Go to Revisiting the San Francisco Freeway Revolt, June 11, 2009, www.SF.Streetsblog.org

But unlike Detroit and Flint, San Francisco lacks stretches of vacant land on which decayed and torn down buildings once stood. So how are they gonna do it? We’re glad you asked. They are dumping soil and mulch on top of the pavement and planting patooties, or whatever in it. They also plan to plant a hundred or so trees. How? Since you can’t plant a tree on pavement, they plan to plant them in pots so they can be moved to other location. Movable farms? That’s what they say.

The Supreme Court’s 2005 decision in Kelo v. New London turned out to be probably the most unpopular ruling in modern history, with negative popular reactions running consistently at a circa 90% level. Rightly so. For what Kelo approved was a process whereby local municipalities can simply take unoffending homes of unoffending owners, raze them, and turn over their sites gratis to mega-developers, the justification being an unenforceable municipal “plan” prophesying that by a trickle-down process the redevelopers’ economic success will increase local tax revenues and boost the local economy in general. Thus, the high point of the Kelo oral argument came when Justice O’Connor asked the city’s lawyer whether in his view the city could take a Motel 6 in order to replace it with a Ritz-Carlton hotel, and he answered in the affirmative. How that can be consistent with any notion of “public use” is indeed difficult to explain to a rational, English-speaking person.

What was legally significant about that case was that, unlike earlier cases, Kelo did not use slum or blight elimination as the rationale for the taking. It was all about money. In other words, in the other such cases, like Berman v. Parker or Hawaii Housing Authority v. Midkiff the court deemed the process of acquisition itself to be the “public purpose” because once these properties were acquired, the adverse conditions, blight in Berman and the supposed oligopoly in Midkiff, were eliminated. Not so in Kelo — in it the acquisition and razing of the subject homes would accomplish nothing; it was the proposed future private, profitable redevelopment that promised an increased cash flow to the city. That was the “public purpose” endorsed by the Supreme Court, although what actually happened was that the project failed, and the subject property is now a vacant, weed-overgrown, trash-strewn 90-acre tract that cost the taxpayesrs over $100 million.

But to get back to the point of this post, no sooner did the ink dry on the Kelo opinions when the usual academic suspects started to rationalize it by arguing that it decided nothing new, that it was the same old, same old stuff, and that the public anger was inspired by — who else? — nefarious right-wingers seeking to . . . Actually, we were never clear as to why liberal academics would take that view, being that they profess to be on the side of the “little people,” fighting the good fight against greedy corporations that are out to feather their own already cushy nests at the expense of the public and of those below them on the socio-economic scale. So why would the bleeding-heart academics take the side of the bad, greedy guys and oppose the likes of Suzette Kelo, a single-mother nurse, minding her own business and trying to make her modest way in life, as opposed to the mega-buck Pfizer pharmaceutical company that was the manifest beneficiary of the Kelo taking?

Remember that this was hardly the first such case. Earlier redevelopment takings were undertaken for the direct benefit of the likes of General Motors, Chrysler, Nissan, Otis Elevators, the New York Stock Exchange, assorted professional sports team owners, retailing giants like Costco, Target and Best Buy, as well as mall developers, large automobile dealers, and even gambling casinos. Yet here were these self-identified champions of the “little people” cheering on a process overtly intended to enrich Pfizer, along with the other big-buck boys, at the expense of those selfsame “little people.” Is a puzzlement, as the king used to put it in Anna and the King of Siam.

Then again, maybe not. We have come across a fascinating article in the Washington Post of all places (Gerard Alexander, Why Are Liberals So Condescending?, February 7, 2010., see http://www.washingtonpost.com/wp-dyn/content/article/2010/02/04/AR2010020403698.html?wpisrc=nl_pmopinions), that sheds a penetrating light on the process whereby liberals, to a far greater extent than conservatives, tend to dismiss without examination views that don’t support their preconceived ideologocal vision of the world, and refuse to engage in reasoned debate of issues, clinging instead to an ad hominem strategy of insulting their opponents whose views they deem unworthy of consideration. Alexander makes a persuasive case (replete with examples) that American liberals, to a degree far surpassing conservatives, appear committed to the proposition that their views are self-evidently correct, and based on fact and reason, while conservative positions are not just wrong but purely ideological and unworthy of consideration. Alexander notes that American liberals appear committed to the proposition that conservative positions are not just wrong but illegitimate, and evil.

Bingo! That would explain the conduct of the largely liberal academics fawning over Kelo, in spite of the fact that it victimized the very people they generally deem to be worthy of their support in other contexts. It seems plausible that these worthies are so besotted with the notion of wealth redistribution — the idea of taking property away from its rightful owners – that they are willing to “throw under the bus” — as the currently fashionable expression puts it — those very “little people” whom they profess to love and whose unfortunate condition they are forever claiming to espouse.

We occasionally post items that are not eminent domain related, but are of general interest. Here is the latest such post.

Los Angeles Daily Journal

January 27, 2010, Page 6

Enough With the ‘Judicial Activism’ Shtick

By Gideon Kanner

Ho, hum. Another earthshaking 5 to 4 decision by the Magnificent Nine, and another raft of outcries about the sin of “judicial activism.” The end of the political world is at hand, say the losers in Citizens United v. Federal Election Commission, and from now on, the dreaded corporations and big labor unions will be able to buy elections like so many cantaloupes in the supermarket. Maybe. Then again, maybe not. The country has muddled through periods of unfettered freedom of expression in the past, and it will likely continue to do so now.

Erwin Chemerinsky seems untroubled by the government’s claim in Citizens United that under the invalidated law it had the power to ban books and motion pictures. He waxes wroth in the op-ed pages of the Los Angeles Times (“Conservatives Embrace Judicial Activism in Campaign Finance Ruling,” L.A. Times, Jan. 22, 2010), and reminds us that conservatives tend to preach against the sin of “judicial activism” but are themselves guilty of it, Citizens United being his “Exhibit A.” Maybe so. But Chemerinsky does not actually condemn “judicial activism” as such. What he kvetches about, is that the conservatives have taken a page from the liberals’ old play book and are reshaping law as the liberals have done in the past. To call it “judicial activism” is to utter a bit of empty political rhetoric. Denouncing significant court decisions as “activist” is a cliché that is up there in the same league as “rounding up the usual suspects.” All it really means is that the speaker does not like the decision in question.

Judicial activism has been a part of American judge-made law, at least since John Marshall astonished the civilized world by positing in Marbury v. Madison that American courts may invalidate duly enacted legislation when in the judges’ opinion it contravenes constitutional provisions. And out here in California, our Supreme Court held in People v. Anderson that it is a court’s imperative duty of the highest order to overrule prior constitutional law when the justices think that it is no longer consonant with social conditions, even if in that case the court turned out to be dead-wrong in its perception of how society viewed the death penalty.

So Chemerinsky may be right in deploring the hypocrisy implicit in rhetorical posturing about “judicial activism,” but if the conservatives who hail Citizens United are hypocrites, so are the folks on Chemerinsky’s end of the political spectrum. So what? As the French put it, tu quoque is not an argument, much less a legal argument, and if the left can tango to the tune of activism, why not the right?

Being a bit older than Chemerinsky, I vividly remember those heady days of yore when changing things legal was the cat’s meow. I remember how the newly muscular plaintiffs’ bar was storming “the citadel,” and Melvin Belli of blessed memory was demonstrating how to shake things up by wringing big bucks from defendants and their insurers – all with blessings from on high. And who can forget the Warren Court’s romp through the Bill of Rights, discovering new, hitherto unperceived constitutional rights? Then there was the familiar Kabuki performance whereby judges with a record of many reversals were defended against charges of incompetence, and hailed as “courageous” because they were out to “change the system.” Remember the bumper stickers that said “Question Authority”? I do.

When I was in college, we didn’t know that watching on-screen sexual gymnastics was our sacred First Amendment right for which our forefathers fought and bled. We had to settle for some fraternity lads surreptitiously screening a grainy, black-and-white home movie of Candy Barr and friends doing their unmentionable things. It took judicial activism to allow us to see “Deep Throat” in living color, in the air-conditioned comfort of a movie theater, compleat with popcorn. Right on, man.

Here in California, it all reached a crescendo of sorts in 1972, when Supreme Court Justice Mathew O. Tobriner – as bright and noble a liberal as could be found on the California bench – took to the pages of the California State Bar Journal, with an article entitled “Can Young Lawyers Reform Society Through the Courts?” 47 Cal. S.B. Jour. 295 (1972). In it, Mathew the Reformer modestly called for a “social revolution,” no less, to be worked by – who else? – himself and his like-minded colleagues, at the behest of “young lawyers.” Never mind that in those days the revolution that young lawyers were into was the sexual revolution, and that their expertise lay largely in the use of mind-altering substances, rather than in social engineering. More important, Tobriner did not appear to be troubled by the problem that when people set out to make revolution, they invite a counterrevolution.

All of which, whatever your right-left orientation may be, is not the business you want the courts to be in if you have the slightest regard for the rule of law, and if you keep in mind the self-evident fact that tomorrow’s movers and shakers may have a different take on things than your favorites du jour.

Case in point: I remember how, during the Kennedy administration, the “cult of intelligence” was in, and America was into kicking ass. It was that administration that coined the term “managed news,” and, as comedian Mort Sahl learned the hard way, making fun of the Kennedys could be hazardous to one’s ability to earn a living, the First Amendment notwithstanding. But “Camelot” was the very thing and was loudly cheered. Then, one day, the tools of that muscular presidency fell into the hands of Richard M. Nixon, and the cheering stopped.

Then there was Chief Justice Roger Traynor, no mean legal activist-revolutionary himself. He pointed out in one of his law review articles that there are notions embedded in the law that have never been cleaned and pressed, and might disintegrate if they were. And deciding which “notions” are proper candidates for the judicial steam press, is something that every generation has to decide for itself. So said Justice Oliver Wendell Holmes. Does that mean that each generation, in addition to reshaping rules of law, gets to rewrite the constitution as it goes along? No, it does not.

If it were up to me I would opt for viewing the Constitution – all of it – as the “supreme law of the land,” just like it says, rather than as a smorgasbord from which to pick those rights one approves of while consigning others to “poor relation” status. But nobody asked me, and the fact that others may have a different take on what the law ought to be is what makes for lawsuits and what keeps lawyers prosperous.

But a line has to be drawn somewhere. Fiddling with basic constitutional rights on an ongoing basis, as Professor Lino Graglia once put it, causes constitutional text to become irrelevant to the subject of constitutional law, and that is not a good thing. I do not like the cynicism implicit in that line, but sometimes it is hard to argue with.

Bottom line: we should concentrate on the doctrinal underpinnings and substantive soundness (or lack thereof) of judicial decisions, and give the “judicial activism” shtick a deserved rest. And as for Citizens United, the striking down of a book-banning law may not be such a bad thing.

Gideon Kanner is professor of law emeritus at the Loyola Law School, and of counsel to Manatt, Phelps & Phillips.

High-speed rail, like they have in Japan and France, is all the rage lately. We blogged about it recently in connection with the reaction of property owners in the San Francisco Peninsula area who are now facing eminent domain takings of land near their homes, or even literally in their back yards. Our post can be found at http://gideonstrumpet.info/?p=346

Now, some interesting facts have been called to our attention in letters to the editor in the Wall Street Journmal of February 4, 2010, p. A18. Letter writer Karl Compton of Houston takes note of some sobering figures. Proponents of the California high-speed rail project some 41 million riders a year which translates into 112,328 per day, or 4,680 per hour. As he puts it:

“With 150 passengers packed cheek-by-jowl into each car, that’s a 31-car train leaving every hour of the day and night.”

Sounds overly optimistic, doesn’t it? But then again ridership projections for proposed mass-transit projects in recent decades have always proved to be optimistic, so why should this one be any different?

Another letter writer, Frank Kingston Smith of Scottsdale, reminds us that high-speed “bullet train” tracks are not like the old choo-choo train tracks we are accustomed to.

“You don’t just lay rails, buy the VFT equipment and then run it. Rails for any VFT [very fast train] must be kept perfect — perfectly aligned, perfectly level, perfectly clean, perfectly clear. In Japan, there are two rail maintenance workers per mile on that dedicated right-of-way.”

Which makes sense. You wouldn’t want to drive a car at 100 mph on a bumpy road, would you? So what makes you think that you can run a train at 100 mph on anything but perfect rails?

So stay tuned. Bringing “bullet trains” to California looks like a long, painful process. Expensive too. Very expensive. So where is California going to get the tens of billions of dollars that will be needed for this project, when it is for all practical purposes broke?

And speaking of painful, remember that Amtrack has had problems with train crashes. Now reflect on a crash of a train going along at 100 mph. We don’t want to think about that.

Follow up. By coincidence, The Economist magazine has an article (Gulliver column, February 4, 2010) on what it’s like to travel on the high-speed train in China, and — more important — on the impact of the newly launched high-speed train service on the airlines serving the same route. Oops! Didn’t think about that — did they? For the Economist article, go to: http://www.economist.com/blogs/gulliver/2010/02/high-speed_rail_china?Fsrc=g

They’re movin’ father’s grave to build a sewer
They’re movin’ it regardless of expense.
They’re movin’ his remains to lay down nine-inch drains
To irrigate some posh bloke’s residence.
Now what’s the use of havin’ a religion?
If when you’re dead your troubles never cease.
When some posh city chap wants a pipeline to his privy, they won’t let a British workman rest in peace

Now father in his life was not a quitter
And I’m sure that he’ll not be a quitter now.
And in his winding sheet, he will haunt that privy seat
And only let them go when he’ll allow.
Now won’t there be some bleedin’ consternation,
And won’t those city chappies rant and rave!
But it’s no more than they deserve, havin’ the bleedin’ nerve
To muck about a British workman’s grave.

“Speaking of roads, I see that, according to USA Today, when the economic downturn began the U.S. Department of Transportation had just one employee making over $170,000. A year and a half later, it has 1,690.”

But there is no money to pay condemnees for all their demonstrable economic losses. That would cause an “embargo” on public projects, as the California Supreme Court once put it.

New London’s newspaper, The Day, reports that in spite of Connecticut Statute 8-199 which requires that title to the land acquired for redevelopment be transferred to the municipality in which it is located, what has happened instead is that the New London Development Corporation ( a non-profit entity set up to acquire land for the city’s redevelopment project) is hanging on to the title. See David Collins, New London Shouls Take Title to Fort Trumbull, February 8, 2010, http://www.theday.com/article/20100207/NWS05/302079924/-1/NWS

The fascinating thing is that when Collins, the author of this article, started calling the people in charge of these things, they either ignored his inquiries or refused to talk.

There is no clue in the article as to why this is going on.

Oh yes. The State of Connecticut has a $73 million mortgage lien on the Fort Trumbull redevelopment project property, but somehow we doubt very much that they will foreclose.

We are back from the ALI-ABA CLE programs on eminent domain that just took place in Arizona. It’s programs, plural, because there were two of tem: the regular annual one that caters to practitioners with some demonstrable track record in the field, and “Eminent Domain 101,” an elementary program for novices. Guess what? In spite of the ongoing recession, the programs were well attended.

We are not sure why this is so, given the tightening of belts at many law firms. Maybe the incidence of takings is holding steady.

Buried somwhere in our consciousness we always had an idea that this was going to happen, and now it appears that it is happening. You may recall how a while back, local do-gooders glommed on to the idea that abandoned railroad rights-of-way should be converted into hiking an biking trails. But there was a problem. Historically, rights-of-way are easements, and American property law clearly holds that when an easement is abandoned by its user (known in the law as the dominant tenant) the area covered by it reverts unencumbered to the owner of the land underlying the easement (known as the servient tenant). So when local goverment entities purporterd to establish their rails-to-trails paths, the servient owners objected, being as under the law they now owned the whole shebang, and as far as they were concerned the would-be trail users were trespassers.

State courts generally sided with that view, and the U.S. Supreme Court held in Preseault v. I.C.C. that, while it would not declare the rails-to-trails legislation unconstitutional as an act of inverse condemnation, the servient tenants would be within their rights to sue in the U.S. Court of Federal Claims for just compensation, being as the rails-to-trails legislation effected a taking of the servient owners’ right to reversion of the easement area upon the discontinuation of railway use. No sooner said than done, and eventually the U.S. Court of Federal Claims held awarded compensation to the servient tenants.

So the rails-to-trails legislation was amended to say that though trains would no longer be running on those rights of way (which would be difficult, being as rails and ties once used by the railroads were removed) they weren’t reallly abandoned because — who knows? — maybe some day someone may want to reactivate railroads. Which, under the name of “rail banking” was a sneaky way of depriving the servient tenants of their rights in the now unused railway rights-of-way

So guess what? Over in Pennsylvania some folks are now actually demanding that some of those trails be converted back to railroad use, being as we are now into energy conservation and trains use a lot less energy per pasenger than cars. At the moment, these things are in their preliminary design states, and it will likely take years (and hundreds of millions of dollars) to get those trains running again. We also have a hunch that there is going to be some NIMBY opposition, but, hey men, these days that’s par for the course.

You can find the story in the Philadelphia Enquirer on line edition (Philly.com), in a story by Paul Nussbaum, entitled How to Use Old Bethlehem Rail Line?, January 29, 2010.